A state appellate court in Iowa looked at Iowa Code 85.20, which allows a co-employee to be sued for any injuries caused by their “gross negligence amounting to such lack of care as to amount to wanton neglect for the safety of another,” and determined that there was nothing to suggest a defendant co-employee knew that his actions would make an injury likely for his co-worker.

Mr. Clark worked for a property management business owned by his parents and was responsible to giving tasks to co-employees, Mr. Bronson and his crew. Mr. Clark gave Bronson’s crew the task of drilling vent holes in the front of a building above an awning that was about 12-13 feet high. Bronson had asked if the crew could use a telehandler (a telescoping forklift) but Clark denied them because that would have required a permit since it blocked the street. Bronson’s crew had access to other pieces of equipment like a scissor lift, scaffolding and several ladders. Bronson chose to use a ladder and begin to drill but something went wrong and fell from the ladder. He died several days later.

Bronson’s widow filed a gross negligence suit against Clark, and the jury found that Clark was grossly negligent and that he was 80 percent at fault and awarded $7 million dollars in damages but the trial court had reserved ruling and ruled the evidence was insufficient to establish gross negligence under Iowa law. The court granted Clark’s motion for judgment notwithstanding verdict.

The appellate court said there are three elements in proving a gross negligence claim. The offender must have knowledge of the peril to be apprehended, knowledge that an injury is probable and a conscious failure to avoid the peril. The appellate court said the widow had enough evidence to support the first element but not the others. Clark knew that accidents happen when working from heights, but he trusted his crew and did not go to supervise or tell them how to do their work. He only said they could not use the telehandler but there were other tools that they could have used to safely complete the work. He did not know they would choose the ladder and he did not know that using the ladder would probably result in injury. He was granted a motion for judgment notwithstanding the verdict.

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